Of natmats, terrorists, and toxics: regulatory adaptation in a changing world.

AuthorMalloy, Timothy F.
  1. INTRODUCTION II. THE PERFECT STORM A. Natural Accidents B. Climate Change C. Industrial Terrorism III. DUELING PARADIGMS: MANAGEMENT VS. PREVENTION A. Implementing the Dominant Paradigm B. Inherently Safer Design IV. ADAPTATION: INTEGRATION OF ISD V. CONCLUSION I. INTRODUCTION

    A Category four hurricane is bearing down upon the Gulf Coast. Managers at the Trident Oil refinery in Pascagoula, Mississippi, invoke shutdown procedures three days prior to expected landfall. All crude oil, sulfuric acid, hydrofluoric acid, and other hazardous materials are drained from the process units and the nearby storage tanks and pumped to a more distant emergency storage area at the facility. Most equipment is shut down, although some steam boilers, power generating units, and cooling systems continue to run in order to maintain temperature and pressure in tanks and to support safety devices. A skeleton crew remains at the facility to deal with emergencies and to restart the facility after the storm passes. The storm arrives, lashing the plant with thick sheets of rain and howling 125 mile per hour winds. Heavy rains have overwhelmed the storm water drains throughout the plant, flooding various buildings. The automatic monitoring system associated with Tank 213, which contains a highly toxic liquid material, is located in one of the flooded buildings. High winds rip Tank 213 from its foundations, causing a massive spill of the contents. The facility operator is unaware of the release due to the failure of the submerged monitoring system, and takes no action until after the released material has reached a nearby channel to the gulf.

    Just south of downtown Philadelphia, the Atlantic Refining Company's facility is nestled among several working class neighborhoods. A sprawling complex on 25 acres, the Atlantic refinery produces 350,000 barrels per day of gasoline, diesel, and jet fuel each year. In the alkylation process unit, light hydrocarbons react with a catalyst to create alkylate, an important additive used to produce high octane gasoline. At the Atlantic refinery hydrofluoric acid is the catalyst of choice. The hydrofluoric acid is stored in a large green cylindrical tank located adjacent to the alkylation process unit.

    One July morning the neighborhoods surrounding the Atlantic refinery are slowly rousing. Dogs sniff grass, weeds, and flowers on morning walks or in backyards. Children rush to depart for daycare, or play in the street or in small green patches behind their homes. Distracted parents finish coffee on the run, packing up for a day of work. Unnoticed, a lone figure carrying a large duffle bag emerges from the stairs leading to the roof of a weathered apartment building. He sets it down by the roof's edge facing the refinery, and methodically removes dark machined items from the bag. Once assembled, he lifts the tubular contraption to his shoulder, sighting the dull green cylinder at the refinery some 500 yards away. A projectile erupts from the tube, streaking towards the refinery. A large puff of smoke and flame appear on the face of the cylinder, and an orange-tinted haze slowly oozes out, drifting in silence towards the neighborhood.

    As the 21st century unfolds, regulators charged with overseeing chemical production and use in the United States face a perfect storm of sorts. Three important phenomena with critical implications for chemical management policy are converging at once. First, production and use of toxic chemicals continue to proliferate. Eighty thousand chemicals are in commerce in the United States, with 1,000 added each year. (1) Although current government and industrial codes are in place to minimize known risks, there are troubling gaps in our understanding of the use and impacts of these chemicals. (2) Despite best efforts, even under normal circumstances chemical releases regularly occur. "Normal accident" theory posits that unanticipated human and system failures are inevitable at complex facilities like oil refineries and chemical plants. (3)

    Second, global climate change is recasting weather patterns. We can expect increasing frequency and severity of hurricanes, and the associated heavy rains, high winds, lightning, and floods. (4) These elements present ever-increasing risk of releases of toxic chemicals from the facilities in a hurricane's path, sometimes called a "natural release of hazardous materials" or a "natmat." (5) While responsible facilities plan for such events, the complex nature of industrial plants coupled with the erratic local effects of severe weather can lead to unexpected outcomes (another demonstration of the normal accident).

    Third, the specter of industrial terrorism raises new concerns about the safety of chemical use and storage. By all accounts, industrial facilities such as chemical plants and oil refineries are tempting targets for terrorists. Such facilities and their dangerous raw materials and products are often located close to dense residential areas. The human costs and property damage flowing from a successful terrorist attack could be substantially compounded by the accompanying disruption of the United States economy. Terrorists have planned strikes against such facilities in the United States, and successfully attacked chemical plants elsewhere in the world. (6) Like extreme weather, a terrorist attack at a modern refinery or chemical plant could trigger a cascading series of events, resulting in a catastrophic outcome that neither the facility nor the terrorists themselves could predict.

    Standing alone any one of these developments justifies a reassessment of existing chemical policy. Taken together, they render such a reevaluation essential. Of course neither the facilities themselves nor the regulators are unaware of these risks. Mature mandatory and voluntary regulatory programs for chemical management are already in place. For example, many significant chemical accidents are subjected to extensive review by the Chemical Safety and Hazard Investigation Board, (7) akin to investigations performed by the National Transportation Safety Board following airplane crashes. (8) Moreover, in the last few years, regulators and businesses alike have begun to respond to the perfect storm. In April 2007, the Department of Homeland Security (DHS) issued new regulations regarding security at chemical plants, on the heels of industry efforts such as the American Chemistry Council's adoption of the Security Code of Management Practices. (9)

    Most existing chemical management programs are based on a "risk management" paradigm. In risk management, the type and amount of the chemical used or stored at a facility is accepted as a given. The goal of such programs is to minimize the risk of release and, in the event of a release, to reduce the likelihood of human exposure to the released substance. Risk management uses administrative procedures such as standard operating procedures, regular inspections, and emergency response plans to ensure careful handling of dangerous chemicals and swift reactions to any releases to the environment. Risk management also uses technological strategies, including alarm systems, emission control equipment, and specialized storage methods, to accomplish its goal. (10)

    However, there is a competing approach to chemical management known as "risk prevention." Generally speaking, the risk prevention paradigm focuses on removing the risk by removing the chemical. Rather than relying exclusively on administrative procedures and technology to control risk associated with a particular chemical, risk prevention seeks to replace the chemical with a safer substitute. Where substitution is not practical, risk prevention attempts to modify the production process so as to reduce the amount of the chemical used or stored at the facility. (11) Regulators at the legislative and agency level have been reluctant to adopt a risk prevention paradigm. The Environmental Protection Agency (EPA) rejected risk prevention in developing its chemical risk management program in the early 1990s. (12) More recently, both Congress and the DHS relied upon a risk management approach in crafting security requirements for chemical facilities. (13)

    This article presents the case for the adoption of mandatory risk prevention as part of our nation's chemical policy. The risk prevention paradigm underlies inherently safer design (ISD), a well-established concept in industrial hygiene. ISD challenges businesses to build safety into industrial processes. It includes generally accepted principles for the technical review of new and existing industrial processes and the evaluation of safer alternative processes and chemicals. ISD, which is already used by a number of businesses, could be integrated into existing chemical management programs by requiring all affected facilities to consider ISD, implement ISD alternatives to the extent feasible, and to document the basis for the rejection of potential ISD alternatives. Although an ISD alternative will not be available in every case, risk management will still play an important role in chemical policy.

    Part I of this article describes the natural, industrial, political, and institutional backgrounds in which chemical policy reform is particularly relevant. It begins with the risk of normal accident, a baseline condition reflecting the unexpected dangers inherent in the industrial processes and operations at chemical and petrochemical plants. Part I then turns to the impacts of climate change on such plants, summarizing the ways in which more frequent severe weather along the Gulf Coast can have disastrous effects, releasing toxic chemicals to the air, water, and land. Next, Part I discusses the risks of a terrorist strike against industrial targets at which hazardous chemicals are used. Although government and business leaders recognized this risk before September 11, 2001, chemical plant security took on a new...

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